September 29, 2009
FROM: Robert J. Freeman, Executive Director
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
I have received your “complaint regarding the behavior of the Workers’ Compensation Board.” You wrote that “[i]t has been widely reported that the WCB has been holding ‘secret meetings’ with regard to a special project that would result in sweeping changes to the current system.”
As you are likely aware, the Open Meetings Law applies to meetings of public bodies. A “public body”, according to §102(2) of the Open Meetings Law, is an entity consisting of two or more members that conducts public business and performs a governmental function for state or local government. Section 140 of the Workers’ Compensation Law specifies that the Board “shall consist of thirteen members’, and numerous provisions of that Chapter indicate that the Board conducts public business and performs a governmental function for the state. Therefore, it is clear in my opinion that the Workers’ Compensation Board is a “public body” required to comply with the Open Meetings Law.
Section 102(1) defines the term “meeting” to mean a gathering of a quorum of a public body, a majority of its total membership, for the purpose of conducting public business. When a quorum convenes to conduct public business, it has been held that such a gathering constitutes a “meeting”, even if there is no intent to take action, and irrespective of the manner in which the gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD2d 409, aff’d 45 NY2d 947 (1978)].
In consideration of the foregoing, a gathering of less than a quorum of the Board, six or fewer, would not constitute a meeting, and the Open Meetings Law would not apply. On the other hand, a gathering of a quorum of the Board to discuss matters of policy, such as “changes to the current system”, would, in my opinion, constitute a meeting required to be held in compliance with the Open Meetings Law.
Lastly, exempt from the coverage of the Open Meetings Law is any matter made confidential by federal or state statute [see Open Meetings Law, §108(3)]. Therefore, insofar as a discussion by the Board would identify a claimant, a matter made confidential by §110-C of the Workers’ Compensation Law, the Open Meetings Law would not apply.
I hope that I have been of assistance.
cc: Cheryl Wood, Esq., Workers’ Compensation Board
Patrick Cremo, Esq., Workers’ Compensation Board